The following summary is based on an opinion of the U.S. Court of Appeals for the First Circuit, which is the appellate court for decisions of the U.S. District Court for the District of New Hampshire. Opinions of the First Circuit are binding on issues of federal law in New Hampshire.
This case involves a retired firefighter who sued under 42 U.S.C. ยง1983 for violation of his rights under the First Amendment, alleging that (1) his non-reappointment to a Parks Commission and (2) comments made by the city's mayor regarding his appointment as a high school basketball coach, while at the same time receiving disability retirement benefits, constituted unlawful retaliation for his exercise of First Amendment rights. The Court held that the Mayor was entitled to qualified immunity because none of the allegedly retaliatory acts violated clearly established law.
Barton was a City of Lynn, Massachusetts firefighter for nearly 30 years. For some of those years he served as the president of the union, often speaking out against City policy, and also participated in several lawsuits against the City. He also served as a volunteer on the appointed Parks Commission beginning in 1996. In 2004, Barton suffered a work-related back injury and was granted an accidental disability retirement pension.
In 2006, Barton was not reappointed to the Parks Commission by Mayor Clancy. Later that year, Barton was appointed by the school committee as a high school boys' basketball coach. To say that the Mayor was disappointed with the school committee's decision to hire Barton would be a gross understatement. Upon hearing of the appointment, the Mayor hand-delivered a letter to the school principal strongly criticizing the decision to hire Barton, and urging that the appointment be rescinded. He also sent a letter to the superintendent expressing his feeling that the appointment of a person currently receiving an accidental disability pension from the city as the basketball coach was not in the best interests of the city's taxpayers. He also contacted the press, which sparked multiple news articles and comments from citizens.
The law is well settled that public officials performing discretionary functions have qualified immunity from personal liability under 42 U.S.C. sec. 1983. The qualified immunity analysis requires a court to decide (1) whether the facts alleged or shown by the plaintiff make out a violation of a constitutional right; and (2) if so, whether the right was "clearly established" at the time of the defendant's alleged violation. Maldonado v. Fontanes, 568 F.3d 263, 269 (1st Cir.2009).
The issue of whether volunteers are entitled to First Amendment protection in either their appointment or removal was left unanswered as the Court found that, at the time of the non-reappointment, it was not clearly established that the loss of an unpaid volunteer position could form the basis of a First Amendment retaliation claim. Stated another way, the basic question of whether an unpaid volunteer position is a valuable governmental benefit, the deprivation of which can trigger First Amendment protection, remains unanswered. The Court held that the Mayor was entitled to qualified immunity for both the non-reappointment claim and the retaliatory harassment claim because, in both instances, the Mayor lacked "fair warning that his particular conduct was unconstitutional."
The recent case of Foote v. Bedford, 2010 WL 3238315 D.N.H., 2010, involved a similar claim regarding non-reappointment to a volunteer position on the Parks and Recreation Commission. The town won that case as well, but on different grounds. (See the "Court Update" case summary published in the October 2010 issue of New Hampshire Town and City.)
Given the increase in cases involving claims of constitutional violations against towns and cities and their officials as public employers, appointing authorities for various boards and commissions, and providers of public benefits such as welfare, we urge caution whenever action is taken that may implicate a constitutionally protected right. Many of these cases involve First Amendment claims based on retaliation for what the plaintiff said, but they can also arise from other constitutionally-protected rights. As this case shows, it is often difficult to determine when an action involves such a right. For this reason, we strongly urge you to seek the assistance of your regular municipal attorney or the staff attorneys at the Local Government Center.